9th Circuit Rules Terror Witnesses Can Sue

The decision that has the law world buzzing this weekend is the release this Friday of Abdullah Al-Kidd v John Ashcroft.

The Plaintiff is an American-born citizen who converted to Islam while he was a running-back at the University of Idaho. He was arrested in Dulles International Airport and transferred to several facilities for interrogation for a total of 13 months, leading to the termination of his job and subsequent difficulty finding employment when he was finally released.

Most employers are not too keen on hiring people that are treated by the government as a common terrorist.

The problem is that Al-Kidd was never arrested for any crime, and was preemptively detained and investigated using the federal material witness statute 18 U.S.C. § 3144.

Strangely, Al-Kidd was mentioned by FBI Director Robert Mueller, a law graduate of University of Virginia (1973), as one of the agency’s “major successes” when he testified before Congress.

Most prosecutors in the U.S. enjoy absolute immunity for activities in the criminal process and as advocate for the state (Imbler v. Pachtman; Buckley v. Fitzsimmons). However, they enjoy only qualified immunity when performing administrative, investigative, and national security functions (Mitchell v. Forsyth). Al-Kidd claimed that the detention involved investigative and national security goals since they were intended to gather evidence about him personally.

Supervisors can be held responsible for the actions of their subordinates where (Larez v. City of Los Angeles):

  1. they set in motion or refuse to terminate a series of acts of others;
  2. are culpable in training, supervision, or control of subordinates;
  3. fail to raise objection with the infringement of constitutional rights;
  4. or, demonstrate reckless or callous indifference for the rights of others.

The decision concludes with a quote from Sir William Blackstone,

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

The 9th Circuit held that Al-Kidd’s 4th Amendment rights were violated, and distinguished between seizing a person to see whether they had committed a crime, and seizing them to see if they have information about some unknown criminal’s actions the prior week (Illinois v. Lidster).

Ashcroft is not entitled to absolute and qualified immunity,and although Ashcroft could not be held personally liable for unconstitutional imprisonment, Al-Kidd’s suit for damages could proceed to trial if this decision is not appealed.

Judge Milan D. Smith, Jr. stated for the majority,

We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

We have seen a similarly ignominious chapter in our Canadian history, and it’s not unforeseeable that those responsible may eventually be held accountable.

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